MUKHTAR AHMAD Vs. KABIR AHMAD

JUDGEMENT

(1.) The facts of this case are somewhat complicated and are stated in full in the judgment of the Court below. So far as they are necessary for the purposes of this appeal they are these.

(2.) One Musammat Zaiban Bibi owned a share amounting to 1-anna 6-pies 6- kwants B-jan in the village of Bharw ari in the Allahabad District. She died in 1896 leaving two daughters, Salim-un-nissa and Eahim-un-nissa, as her sole heirs. Her brother-in-law, Zia-ul-haq, took possession of the entire property. Musammat Eahim-un-nissa filed a suit and obtained possession of her share of the inheritance namely 9-pies 3-krants i-jan, Mst. Salim-un-nissa did not file a suit but on Zia-ul- haq's death in 1902 she claimed her share in the mutation proceedings A compromise was entered into by which she was awarded a 7-pies share and the remaining 2-pies 3-krams i-jan remained in posess-sion of the heirs of Zia-ul-haq. While Zia-ul-haq was in possession of the entire property he had mortgaged 9-pies of it to one Mukar-ram Husain. Mukarram Husain filed a suit on his mortgage and obtained a decree for sale in respect of this 9-pies. In the meantime, there had been a partition of the property and the 9-pies 3-krants i-jan to which each of Zaiban Bibi's daughter was originally entitled became after the partition a share of 2-annas 9-pies 1-krant %-jan 11-tond. In the auction sale which took place in execution of Mukarram Husain's decree the property was purchased by the present appellants Mukhtar Ahmed and others. In the sale certificate the 9-pies share was correctly stated but it was incorrectly described as corresponding to 2- annas 9-pies 1-krant 2-jan U-tond which was really the equivalent of the entire 9- pies B-krants i-jan share as had existed formerly. The revenue of the share was, however, correctly given and was the revenue corresponding to the original 9-pies share which the Court was entitled to bring to sale under the decree. Both the Courts below have held that the words " 2-annas 9-pies 1-krant 2-jan U-tond " in the sale certificate are merely a misdescription due to a clerical mistake and that what really passed was the original share of 9-pies in respect of which the decree was granted. Two suits were brought, one by the heirs of Musammat Salim-un- nissa and the other by the heirs of Zia-ul-haq, against the representatives of the auction-purchasers to recover the difference of 3-krants 1-jan. In connection with these two suits three appeals were tiled to the Court below, two by the heirs of Zia-ul-haq and one by the defendants. The Court below has held that the frkrants and jan share belongs to the plaintiffs in the two suits in proportion to their share in the entire property. As between the two sets of plaintiffs there is no longer any controversy. The defendants have filed three connected appeals to this Court against the decrees passed by the Court below on the three appeals preferred to it.

(3.) Both suits were filed within twelve years of the date of the auction-sale so that no question of limitation arises.